Scalia Decries Drift of Court On Religion U.S. Tradition Not Neutral, Justice Tells Torah Sages
By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
June 2, 2008
... he decried what he saw as the Supreme Court’s prevailing, if recent, jurisprudence that holds that government “cannot favor religion over nonreligion.”
Once again he’s opening the door to discrimination based on a lack of religious beliefs, and government-based anti-atheist bigotry.
I’ve never had much respect for Scalia. He seems to be one of the most narrow minded individuals on the supreme court in ages. You would think he must be reasonably bright to end up in that position, but he sure does come up with some idiotic comments.
I think any reasonable individual who studies the constitution would realize that the intent of our forfathers was to recognize the importance of an individuals right to believe as he/she so chooses. It is the infringement of these rights that has lead to terrible atrocities and the protection of those same rights that leads to great prosperity. That’s why it is a prominent feature of the bill of rights. Our forfathers clearly understood that. Its a shame Justice Scalia has so much difficulty grasping the same concept.
Scalia Decries Drift of Court On Religion U.S. Tradition Not Neutral, Justice Tells Torah Sages
By JOSEPH GOLDSTEIN, Staff Reporter of the Sun
June 2, 2008
… he decried what he saw as the Supreme Court’s prevailing, if recent, jurisprudence that holds that government “cannot favor religion over nonreligion.”
Once again he’s opening the door to discrimination based on a lack of religious beliefs, and government-based anti-atheist bigotry.
Scalia might point out that the door you fear is always open based on liberal jurisprudence. Who is to say that some future Supreme Court will not find the state’s right to enforce various forms of religious orthodoxy (elastic clause, anyone?)? The “Living Constitution” opens all such doors to a majority of justices.
Scalia points out, rightly, that American tradition does favor religion. You may not like it; you may even believe that the Constitution contradicted the American tradition, but how do you contest the his point as to the facts? Scalia’s view leaves open the possibility of legislating religious neutrality in the future. The “Living Constitution” makes any such legislation subject to the whim of the courts. What principle makes one instance of majority rule wrong and the next instance of majority rule right?
Scalia points out, rightly, that American tradition does favor religion. You may not like it; you may even believe that the Constitution contradicted the American tradition, but how do you contest the his point as to the facts? Scalia’s view leaves open the possibility of legislating religious neutrality in the future. The “Living Constitution” makes any such legislation subject to the whim of the courts. What principle makes one instance of majority rule wrong and the next instance of majority rule right?
Scalia might point out that the door you fear is always open based on liberal jurisprudence. Who is to say that some future Supreme Court will not find the state’s right to enforce various forms of religious orthodoxy (elastic clause, anyone?)? The “Living Constitution” opens all such doors to a majority of justices.
Scalia points out, rightly, that American tradition does favor religion. You may not like it; you may even believe that the Constitution contradicted the American tradition, but how do you contest the his point as to the facts? Scalia’s view leaves open the possibility of legislating religious neutrality in the future. The “Living Constitution” makes any such legislation subject to the whim of the courts. What principle makes one instance of majority rule wrong and the next instance of majority rule right?
If Scalia were anyone else you could take those remarks at face value and yes there is some truth to the fact that this country has a tradition of favoring the religious over the non-believers ( something I personally think is not in the spirit of our constitution), but this is Scalia and his personal views and prefernces are overtly in favor of religion. So when he says something like that he isn’t taking a neutral position, he’s implying that with the right cases brought before him and the court they could put religion ( and make no mistake, he means HIS religion) back in government. There is no mistaking the fact that Scalia believes religion has an important place in government and that he would like to see the supreme court take a position supporting this point of view.
The flexibility and “vagueness” of our constitution is no doubt one of its greatest strengths but also its greatest weakness. To quote one of our greatest founders, Thomas Jefferson, “The price of freedom is eternal vigilance”. Those of us who care about such things as personal and religious freedom need to be vigilant against people like Scalia who are always lurking ready to limit those freedoms to attain their own goals.
Scalia might point out that the door you fear is always open based on liberal jurisprudence. Who is to say that some future Supreme Court will not find the state’s right to enforce various forms of religious orthodoxy (elastic clause, anyone?)? The “Living Constitution” opens all such doors to a majority of justices.
Scalia points out, rightly, that American tradition does favor religion. You may not like it; you may even believe that the Constitution contradicted the American tradition, but how do you contest the his point as to the facts? Scalia’s view leaves open the possibility of legislating religious neutrality in the future. The “Living Constitution” makes any such legislation subject to the whim of the courts. What principle makes one instance of majority rule wrong and the next instance of majority rule right?
Doug’s not contesting the “fact” that American tradition favors religion. He’s pointing out that American traiditon doesn’t follow the framework the Founding Fathers established in the Constitution. Scalia and others like him tend to ignore or not see the Jeffersonian perspective that he mentioned in his speech. They prefer to stick to what’s popular, not what’s protected in the Bill of Rights.
I suppose the principle you asked for doesn’t really exsist, but checks and balances seem to help.
Certainly, America has a tradition of bigotry of various sorts—anti-african, anti-asian, anti-jewish, anti-catholic, anti-german, anti-irish, anti-hispanic, anti-native, anti-gay, anti-atheist ... If we’re deciding our court cases based on tradition, I suppose they’re all fair game.
Certainly, America has a tradition of bigotry of various sorts—anti-african, anti-asian, anti-jewish, anti-catholic, anti-german, anti-irish, anti-hispanic, anti-native, anti-gay, anti-atheist ... If we’re deciding our court cases based on tradition, I suppose they’re all fair game.
Scalia’s comments underscore the reason why all committed secularists have a moral obligation to make sure that we vote someone into
the White House in November who will not put more Scalias onto the SCOTUS when the inevitable vacancies occur in the next few years.
I hope that secularists will view Scalia and his ilk as one of the most serious issues for this upcoming election.
As Eddie Tabash always says, people will vote on what issues are important to them, but the effects of another conservative supreme court justice will likely have a greater impact than the economic policy of a single candidate.
I wish Jefferson was still around. Has anyone read Dershowitz’s book ‘Finding Jefferson’? I own it but haven’t read it yet. I have read ‘Blasphemy,’ which was excellent.
Those Democrats who have said that they would not vote for Clinton/Obama if she’d/he’d won the primary, and would rather vote for McCain are missing the big picture-----they scare me! It reminds me of the Nader fiasco that got us 4 more years of the Shrub!
If Scalia were anyone else you could take those remarks at face value and yes there is some truth to the fact that this country has a tradition of favoring the religious over the non-believers ( something I personally think is not in the spirit of our constitution), but this is Scalia and his personal views and prefer(e)nces are overtly in favor of religion. So when he says something like that he isn’t taking a neutral position, he’s implying that with the right cases brought before him and the court they could put religion ( and make no mistake, he means HIS religion) back in government. There is no mistaking the fact that Scalia believes religion has an important place in government and that he would like to see the supreme court take a position supporting this point of view.
On the contrary, Scalia believes that religion has an important place in society and that it is mistake to use the law created by a religious society to make the government neutral toward religion where that does not appear to amount to either the intent or the text of the law. That is the philosophy of the originalist.
The flexibility and “vagueness” of our constitution is no doubt one of its greatest strengths but also its greatest weakness. To quote one of our greatest founders, Thomas Jefferson, “The price of freedom is eternal vigilance”. Those of us who care about such things as personal and religious freedom need to be vigilant against people like Scalia who are always lurking ready to limit those freedoms to attain their own goals.
So what do you suggest? A religious test for the supreme court?
Seriously, I’d be interested in seeing you give an example of a Scalia legal opinion that was based on religion rather than on the law.
Certainly, America has a tradition of bigotry of various sorts—anti-african, anti-asian, anti-jewish, anti-catholic, anti-german, anti-irish, anti-hispanic, anti-native, anti-gay, anti-atheist ... If we’re deciding our court cases based on tradition, I suppose they’re all fair game.
They’re all fair game based on a “living constitution” anyway. Care to deal with that point?
Doug’s not contesting the “fact” that American tradition favors religion. He’s pointing out that American traiditon doesn’t follow the framework the Founding Fathers established in the Constitution.
You’re able to detect much more subtlety in his words than I.
Scalia and others like him tend to ignore or not see the Jeffersonian perspective that he mentioned in his speech. They prefer to stick to what’s popular, not what’s protected in the Bill of Rights.
Scalia would insist that what is most important to him in judging cases is the proper understanding of the Constitution, including the Bill of Rights, and he would (I expect) explicitly disagree that popularity has anything to do with interpreting the law. Instead he would aver that the way the people who wrote the law treated the law provides an important insight into the proper understanding of the law. You can throw all that out the window with the “Living Constitution"--the justices can rule according to popularity or according to personal whim.
I suppose the principle you asked for doesn’t really exsist, but checks and balances seem to help.
The legislative body will tend to follow what is popular. An originalist court will rule on the legislature according to the law. With justices using the “Living Constitution” concept, anything goes as a practical matter.
I should think that skeptics would prefer Scalia’s method of interpreting the law if it weren’t for disagreement with his conclusions.
This is a key phrase, and I think the core of the constructionist error. Scalia will claim that he can divine such an understanding from the document itself, and perhaps supplemented with some limited study of ancillary information that gives insight into the writers’ intent. He will claim that the resultant understanding is entirely free from the influences of his own religious, cultural, or personal biases, and that this makes it a more stable and ultimately superior form of interpretation than the more relative and flexible approach of people who support a “living constitution.” The problem, is that he is either mistaken or disingenuous when he claims such objectivity. “Sacred” texts, whether religious or governmental, can often be construed to mean what the interpreter would like them to mean, and he is no freer from bias than anyone else; he is merely freer from an understanding of his own bias. The interpretation of the 2nd amendment by most strict constructionists as supporting a general right to own guns is clearly inconsistent with a strict, literal reading of the language in terms of ordinary English grammar, and yet the underlying “intent” is divined from the words, and it just so happens to concur with the political opinions of the interpreters, who tend by and large to be political conservatives.
I don’t deny that too much flexibility in interpreting the founding documents is a dangerous road to go down as well, by I find the originalist position to be based on an ideal of objective, straightforward, and bias-free interpretation that is unachievable, and I think they are either mistaken or deliberately invoking this ideal for its political value (and I have no evidence to conclude which is the case).
This is a key phrase, and I think the core of the constructionist error. Scalia will claim that he can divine such an understanding from the document itself, and perhaps supplemented with some limited study of ancillary information that gives insight into the writers’ intent. He will claim that the resultant understanding is entirely free from the influences of his own religious, cultural, or personal biases, and that this makes it a more stable and ultimately superior form of interpretation than the more relative and flexible approach of people who support a “living constitution.”
Would he? I’ve never known Scalia to claim that any judge is absolutely free of bias. But it seems fairly plain that the originalist approach irrespective of bias, makes it the more stable and ultimately superior form of interpretation compared to the “living constitution.”
The problem, is that he is either mistaken or disingenuous when he claims such objectivity.
Where has he claimed such objectivity, since you’ve gotten around to making that claim?
“Sacred" texts, whether religious or governmental, can often be construed to mean what the interpreter would like them to mean, and he is no freer from bias than anyone else; he is merely freer from an understanding of his own bias. The interpretation of the 2nd amendment by most strict constructionists as supporting a general right to own guns is clearly inconsistent with a strict, literal reading of the language in terms of ordinary English grammar, and yet the underlying “intent” is divined from the words, and it just so happens to concur with the political opinions of the interpreters, who tend by and large to be political conservatives.
Odd example, since the supposedly clear conflict is not clear.
Yesterday I moderated a debate on the Second Amendment at UCLA Law between Alan Gura, the attorney representing Heller before the Supreme Court, and Jack Rakove, the Pulitzer Prize-winning historian who filed an amicus brief on behalf of the District of Columbia in DC v. Heller. The debate focused, as so much of the debate over the Second Amendment does these days, on the original meaning of the Second Amendment. Was the original understanding of the amendment to protect a private individual right to keep and bear arms, or was the amendment designed to preserve state militias from federal interference? http://prawfsblawg.blogs.com/prawfsblawg/2008/02/originalism-and.html
Conflicting originalist interpretations.
What better distinguishes the Second Amendment controversy
from other disputes, however, is the degree to which the individual
right interpretation of its meaning rests upon an explicit, robust
commitment to the theory of originalism. http://lawreview.kentlaw.edu/articles/76-1/Rakovemacro2.pdf
Conflicting originalist interpretations.
The most important of these is the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Now invoked as a safeguard of the private ownership of guns, the Second Amendment was originally a close cousin of the First, centrally concerned with protecting the democratic goals associated with both populism and federalism. Amar urges that the special concern of the Second Amendment is the potential abuse of power by the federal military. If “the people” are allowed to retain the capacity to bear arms, they will be in a position to protect themselves against an overbearing central government.
The right to keep and bear arms was centrally linked with the notion of popular sovereignty. So long as “the people” could be permitted to retain the power of force, and the national government could not eliminate that power, there would be a crucial check against an overreaching central government, determined to entrench itself at the expense of popular will. For Amar, the Second Amendment speaks in the same democratic terms as the First. “The Founders’ motto, in effect, was that if arms were outlawed, only the central government would have arms.”
http://home.uchicago.edu/~csunstei/originalism.html
Originalist interpretation.
I don’t deny that too much flexibility in interpreting the founding documents is a dangerous road to go down as well, by I find the originalist position to be based on an ideal of objective, straightforward, and bias-free interpretation that is unachievable, and I think they are either mistaken or deliberately invoking this ideal for its political value (and I have no evidence to conclude which is the case).
I’m skeptical regarding claims of actual objectivity by the justices. The originalist method, if done objectively (and the more objectively the better), seems the best course for interpretation of law. I’m not sure how you could measure objectivity with an interpretation based on the “living constitution.” The latter method appears to enshrine contemporary bias.
it seems fairly plain that the originalist approach irrespective of bias, makes it the more stable and ultimately superior form of interpretation compared to the “living constitution.”
This is your stance, and so it “seems plain” to you. We wouldn’t be having this conversation if it really was so obvious.
I haven’t the time to search through Scalia’s public pronouncements, so I can’t demonstrate that he has claimed originalism is objective or free from bias. However, you clearly feel it is more objective and freer from bias than any alternative, and the approach is by definition intended to remove the subjectivity from the process of constitutional interpretation, so I’m arguing against an idea inherent in the paradigm regardless of what Scalia might or might not have said. Can you see originalism as making sense if one did not claim it had some objectivity or freedom from bias that it’s competitors did not have?
As for the examples you give of originalist approaches to interpreting the 2nd amendment, they demonstrate my point quite nicely. One can look at the exact words of the amendment only, and if the conventional grammatical function of the initial dependant clause “a well regulated Militia being necessary to the security of the State” is accepted and the meaning of “militia” and “State” understood as conventionally defined, then the sentance clearly includes the intent of the stipulated right, namely to ensure the security of the State through the maintenance of a well-regulated Militia. However, the originalists go beyond this to find textual evidence for a broader interpretation. There is no justification for this if one is claiming that the simplest and most direct understanding of the actual language of the document is the key to a “proper understanding” of it, as they do. The same principle applies, of course, to “Thou Shalt not Kill,” which apparently doesn’t mean exactly what it says in the conventional interpretation of scripture even among the most literalist of Christian (for whom it seems to mean something more like “thou shalt not kill other human beings without a good reason.")
My point is that contemporary values and biases are just as involved in originalist acts of interpretation as in those of any other party, they simple refuse to admit it and claim, as you do, the superiority of some sort of objectivity and simplicity they do not demonstrably have. Acknowledging that values and standards change, and that the intent of the founders cannot be objectively determined beyond contention, is a sounder basis for interpretation because it allows us to identify and control for our biases in some rational way, rather than just claiming they do not exist. Now, the exact mechanism for establishing judicial rulings is one we could argue about, though I’m no constitutional lawyer so there would probably be lots of holes in my strategies (and yours too, surely, unless you are an expert in this field?). But my goal is not to establish a perfect mechanism but simply to point out that the advantages you claim for originalism are somewhat illusory.
